Lesbian child support fight goes to state Supreme Court

The Hawaii Supreme Court is considering whether a woman who divorced her spouse in a same-sex marriage is the legal parent of the child her former spouse gave birth to during the marriage and is therefore obligated to pay child support.

The justices heard oral arguments Thursday from the women’s lawyers at Castle High School as part of its Courts in the Community program. Students from Le Jardin Academy, Mililani, McKinley, Farrington and Castle high schools got to hear the arguments.

The case involves the application and interaction of two laws, Hawaii’s Uniform Parentage Act and the state’s Marriage Equality Act.

The Uniform Parentage Act says a man is presumed to be the natural father of a child if he and the child’s natural mother were married when the child was born.

The Marriage Equality Act says all gender-specific terminology, such as husband, wife, widow and widower, shall be construed as gender-neutral when assigning responsibilities and affording rights, benefits and protections to spouses under state laws. Hawaii lawmakers approved legislation for the Marriage Equality Act in 2013 when they also approved same-sex marriage.

The files and records of the paternity dispute between the former spouses was heard by the state Family Court and are therefore confidential. For the purposes of Thursday’s oral arguments, the child-bearing woman was identified as DD, while the other woman was identified as CC.

The couple legally married in the District of Columbia in 2013. They later moved to Hawaii when CC, who was an officer in the military, received orders reassigning her here. While CC was on deployment in 2015, DD was impregnated through the use of a sperm donor.

CC filed for divorce when she returned from deployment. DD gave birth to the child while the divorce proceedings were pending.

Family Court Judge Matthew Viola ruled that CC is the legal parent of the child. CC appealed.

Rebecca Copeland, CC’s lawyer, told the Supreme Court justices Thursday that the Marriage Equality Act doesn’t specifically apply to issues of parentage. She also said the Uniform Parentage Act doesn’t apply to her client because lawmakers never envisioned or intended it to apply to same-sex spouses when they approved the law.

“The problem with applying that is that it doesn’t create a predictable legal landscape for applying (the law) in the many different ways that these issues can arise in the context of what is admittedly a changing landscape of families in Hawaii,” Copeland said.

If the law did apply to CC, then CC, like a man, can successfully refute paternity by proving that the child did not receive DNA from her, said Copeland. CC did not consent to the pregnancy, Copeland added.

“Why should we even apply the lack of consent,” Associate Justice Richard Pollack asked.

He said if consent is an issue in paternity then husbands who say their wives stopped taking birth control without their knowledge can claim not to be the father of the child.

Representing the state, Solicitor General Clyde Wadsworth argued that state law favors assigning parental responsibilities to CC.